Posted
by
CmdrTacoon Wednesday October 01, 2008 @12:00PM
from the i-was-wrong-about-milli-vanilli dept.

Frequent Slashdot contributor Bennett Haselton writes
"The Virginia Supreme Court has
ruled
that the state's anti-spam law, which
prohibits the sending of bulk e-mail using falsified or forged headers,
violates the First Amendment because it also applies to non-commercial
political or religious speech. I agree that an anti-spam law should not
outlaw anonymous non-commercial speech. But the decision contains statements
about IP addresses, domain names, and anonymity that are rather basically wrong,
and which may enable the state to win on appeal. The two basic errors are:
concluding that anonymous speech on the Internet requires forged
headers or other falsified information (and therefore that a ban on forged
headers is an unconstitutional ban on anonymous speech), and assuming that
use of forged headers actually does conceal the IP address that the
message was sent from, which it does not."
Click that magical little link below to read the rest of his story.

The first 20 pages of
the decision, which are all about legal standing,
jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing
those at all except to point out that on most of those issues, the lower
court came to exactly the opposite conclusion from that of the Virginia
Supreme Court, and there is no reason to think that the higher court
is any more likely to be "correct" than the lower court (even granting
the assumption that there is an objectively "correct" answer to these questions).
Any time you feel intimidated by "experts," it's helpful to step back and ask
whether the alleged experts even
agree with each other.

Page 21
is where the technical stuff starts that we can tear apart directly.
The decision says, in talking about the transmission of e-mail:

The IP address and domain name do not directly identify the sender, but if the IP
address or domain name is acquired from a registering organization, a database search
of the address or domain name can eventually lead to the contact information on file
with the registration organizations. A sender's IP address or domain name which is not
registered will not prevent the transmission of the e-mail; however, the identity of
the sender may not be discoverable through a database search and use of registration
contact information.

These are statements that are only true if you play some kind of parlor game to
find a way to read them as "true," not statements that indicate the court knew
what was going on. To review: IP addresses in the U.S. are generally allocated
by ARIN in blocks to Internet service providers
and Web hosting companies; these
companies then lease the IP addresses to their customers. You can
look up an IP
address with ARIN to determine which ISP or hosting company has been assigned
that particular block, but the ISP or hosting company generally won't tell you
the identity of their customer who has leased it from them. And anybody
can register a domain, but most domain registrars give you the option of registering
the domain anonymously, so that only the registrar knows the owner's true identity.
So the court's statement that a database search "can eventually lead" to contact
information is correct only if you clarify that it "can" lead there, but it usually
won't. As a finding of fact, this is 100% true, and about as useful as "Obama might
win in November. Or he might not."

But it's impossible to defend what the court says next:

As shown by the record, because e-mail transmission protocol requires entry of an IP address
and domain name for the sender, the only way such a speaker can publish an anonymous e-mail
is to enter a false IP address or domain name. Therefore ... registered IP addresses and domain
names discoverable through searchable data bases and registration documents "necessarily
result[] in a surrender of [the speaker's] anonymity."

Now, there are two possible definitions of "anonymity" to consider: (1) you can be anonymous
to the extent that ordinary citizens reading your content cannot determine your identity
without a subpoena; or (2) you can be anonymous to the extent that even the government,
armed with subpoenas and wiretaps, can never find out who you are. But under either
interpretation of the word, the court's statement that "the only way such a speaker can publish
an anonymous e-mail is to enter a false IP address or domain name," is wrong.

By default, almost all Internet users are already anonymous in the first sense, even without
using forged headers or other tricks in their e-mails. When you send e-mail through your own
Internet service provider's mail server, or when you log on to Hotmail and send messages from
a Hotmail account, or when you lease a dedicated server from a Web hosting company and use it
to send mails, the messages don't contain any more information about your true identity than
you decide to put in them. Only the government could ordinarily discover your identity in those
cases, by looking at the IP address that the message was sent from, and subpoenaing the Internet
service provider or hosting company for the identity of the person using that IP address at that
time.

But there are even ways to be anonymous in the second sense -- such that not even the
government could identify you -- without resorting to forged e-mail headers. You can create
Hotmail and Gmail accounts without giving the providers any of your true information. When
you send messages through those services, they pass along the IP address that you used to
connect to their Web sites, but you can obscure your IP address as well, by using an anonymizing
proxy or a service like Tor.

Elsewhere in their decision, the court indicated that what they really wanted to protect
was the right to send anonymous bulk e-mails that were political or otherwise
non-commercial. But even by that standard, it's still possible to use Hotmail and Gmail
together with an anonymizing proxy (the mail services do
impose limits on how many messages
each account can send in a day, but if you want to send bulk mails badly enough, you can always
sign up for multiple accounts). And if you only care about staying beyond the reach of U.S.
subpoena power, you can always sign up for a dedicated host overseas and send the bulk mails
from there.

Apart from the court's misstatement that forged headers are the only way to publish anonymously
in e-mail, there is the incorrect presumption that forged headers actually do afford
anonymity in either of the senses given above. The court wrote, "[T]he only way such a
speaker can publish an anonymous e-mail is to enter a false IP address or domain name."
But while it is possible to enter any domain you want in your return e-mail address
when you send an e-mail, the court apparently didn't know what it was talking about when it
referred to "entering a false IP address." You can't just "enter" any arbitrary IP address
when sending an e-mail. If user@domain name.com receives an e-mail, the mail server at
domain name.com has to receive the message over a connection made from some other machine,
and the domain name.com mail server can always see the IP address of the machine on the other
end of the connection. Normally, this machine on the other end would be the mail server of
the sender's Internet service provider. Or if the sender has leased a dedicated machine at
a hosting company, that dedicated machine would be the one connecting to the domain name.com
mail server. Some desktop spamming programs let you turn your home computer into the sending
mail server, so that it connects directly with the remote mail server to send the message.
In all of these cases, the receiving mail server can see the IP address of the sending
machine, so a government subpoena would usually be enough to determine the sender's identity.
(I know you all know this, but I have delusions that some helpful clerk will print out this
article and explain this to the judge.)

When spammers "enter" false IP addresses in sending mails, that usually means entering made-up
IP addresses in headers that are sent along with the contents of the message. However, these
would normally only have the effect of throwing someone off the trail who opened the message
sent to user@domain name.com and was reading the headers manually. Perhaps they would see some
random IP addresses scattered in the headers, would go to ARIN and look up the hosting company
or ISP that those IP addresses were assigned to, and would mistakenly file a complaint with
that company. But the domain name.com server can always see the true IP address that the message
was received from, and for people who know how to read the headers properly, that IP address
will be indicated in the headers as the address that connected to the domain name.com mail server
to send the mail.

So the court's statement that "the only way such a speaker can publish an anonymous e-mail is
to enter a false IP address or domain name" is doubly wrong: because it's easy to send e-mails
anonymously without using forged headers, and because forged headers do not in fact provide the
level of anonymity that the court said should be protected anyway. The only way to truly
obscure your identity by hijacking a third-party IP address without permission, would be to
hack into a third party's computer, by infecting a user's home computer with a Trojan horse for
example, and
using it to send mail.
Presumably the court was not contemplating that such an
activity should be considered legal, even as a means of sending political speech.

It would presumably be unconstitutional for an anti-spam law to prohibit anonymous political
e-mails which attempted to hide the sender's identity -- that is after all what
"anonymous" means! You couldn't pass a law outlawing Tor, for example. But the Virginia
law doesn't apply to senders merely trying to hide their identity, it applies only
to the use of computers
"to falsify or forge electronic mail transmission information or other routing
information in any manner in connection with the transmission of unsolicited bulk electronic mail"
(emphasis added). There is a difference between obscuring one's identity (which Tor and anonymous
remailers allow you to do), and actively trying to frame an existing third party by using
forged headers to make the mail appear that it came from somewhere else, especially when
sending bulk mail, which is likely to generate complaints whether it's commercial or not.

By contrast, the
Washington anti-spam law
prohibits any mail which "misrepresents
or obscures" the origin of the message (emphasis added). This is broader and
could be construed to include a wider range of things, such as the use of overseas IP
addresses to send bulk mail on behalf of a U.S. company, or the use of anonymously registered
domains to hide the sender's identity. It would probably be unconstitutional to prohibit
these obscuring techniques for non-commercial anonymous e-mail, which is why the Washington
law specifically applies only to commercial messages.

But here I'm getting into issues like constitutional law where different experts might disagree.
The clear-cut technical fact is that, contrary to the court's ruling, forged e-mail headers do not
provide true anonymity when sending mail, whereas there are other, legal, ways of sending
mail that do make the sender truly anonymous.

What is frustrating about the court's misstatements about IP addresses, domain names,
and anonymity, is that the judge is obviously intelligent and could have understood
the concepts if they had been explained correctly to him. I held some misconceptions
for a long time myself about domain names and IP addresses, because the first explanations
I read were incomplete or wrong, or I didn't understand them.
But the mistakes in the ruling would have been caught if
the judge had just showed a draft to an Internet guru and said, "Hey, can you check if there's
anything wrong here?" I know, I know, that's "just not done" (and there are
probably
formal rules in most states
against showing a draft of a ruling to a third party before publishing it, even if the
third party reviewer is sworn to secrecy, as they should be).
But there's nothing stopping the judge from asking a technical expert during the trial,
"It seems to me that the only way to publish anonymously on the Internet would be to use
forged headers in e-mail. Can you tell me if that's right before I go too far down that
line of reasoning?"

I've appeared before judges in Small Claims court who did ask questions about any part of
the technical issues that they wanted to understand, and were even willing to revise
some prior misconceptions. But all of them, even the open-minded ones, proceed by gathering
information during the trial, and then in the conclusion, spell out their argument and their
ruling (during which time you're not allowed to interrupt), which is then set in stone unless you appeal.
I've never seen a judge say, "Here's the line of
reasoning in my head right now, and my tentative conclusion. Is there anything in that
chain of reasoning that you want to dispute, before I make it final? I am not
promising to change my mind just because you disagree with something. But I will take it
into account." This is essentially what scientists do when they submit their papers for peer review
before publishing them, to minimize the chance of making an error. Judges could do the same thing
-- if not formally, because they're not allowed to show opinions to third parties, then at least
informally, by running their ideas past the experts assembled in their courtroom -- to reduce
the chance of making a mistake. But have you ever heard of a judge doing that?

The Virginia judges probably did about as well as one could be expected to do, having learned
all these technical terms only recently, and then withdrawing to their chambers to form an
argument without any feedback from any technical experts. So, given the technical howlers
that ended up in the ruling, the moral is that forming an argument in isolation from experts
is probably not the right way to go about it.

SCOTUS [wikipedia.org], especially in a case like this where their are likely federal issues, since it involves a lil' ol' network [wikipedia.org] that spans the entire globe:

Federal courts may only overrule a state court when there is a federal question, which is to say, a specific issue (such as consistency with the Federal Constitution) that gives rise to federal jurisdiction. Rulings of state supreme courts on such matters may be appealed directly to the Supreme Court of the United States.

Me too. I get really annoyed wehn people seem to respond half-assed to my comments, and then it doesn't make sense because it doesn't even seem like they're responding to my post or even that they read my post and it doesn't make a lot of sense either. It's I'm all liek, didn't you even read my post? Did you even read your own post?

For the most part, the article stays away from the legal conclusions and focuses instead on the factual bases for the legal conclusions. By showing that the factual bases cited in the decision were flawed, Haselton is trying to show that the legal conclusions must also therefore be flawed.

Ordinarily, this is a good approach. Unless, of course, the judge doesn't really care about the facts and recited them just so people wouldn't pester him about his insane conclusions.

Could be, but then again, I didn't really understand his analysis all that well. You see, I AM an attorney and have a well honed ability to ignore whatever facts I choose so long as my version of reality is the one that prevails.

Perhaps some contributors misunderstand the concept of a "summary." I've seen more than a few who could definitely use a primer on the effectiveness of "brevity" as well.

Fair enough, but I honestly think that in this case, the overlong and verbose summary is a refreshing change. What generally and typically passes as a "story" is most often a few scant one-line paragraphs that summarises, or worse, describes and editorialises, a real event or an issue.

It's not unlike what we routinely get from an organisation like CNN, where "news" is offered up in the form of sound bites, provocative graphics, and an absurdly dramatic soundtrack. If it wasn't for the pseudo passionate mumblings and fixed but empty stares of Anderson Cooper, or the rumbling drone from Wolf Blitzer, we could step back and recognise that what's presented is mostly devoid of content.

If you think that's an exaggerated comparison, try reading future Slashot stories with lynx (or just dump it to less, like I do). By the time you find the actual content, you realise there's not enough there to even bother with. In Slashdot's case, it's a truism that what's of most value is found in the contributions of its readers. It's similarly the case that most of us wait for or anticipate a reader offering up the real meat of the story, or some unique insight into it. We don't read the articles just because we're lazy. We don't read them because what's found on the pages of Slashdot is simply better.

Think of it this way -- this may be the one time where we should be modding the summary instead of the posts!

Huh? Interesting, but it seems to actually slow me down... I think it would for most people unless you're in the habit of reading only one word at a time. But I think for most people it's customary to pick up several words at a time while reading fast.

You must be joking but...I think this is valid only if your reading speed is very slow to begin with. People who have normal reading abilities will take in several words at a time. Your eyes are not really that sharp but your brain will help you fill in the rest, or something like that. Seeing only one word at a time seem damn inefficient to me.

The best way to learn to read faster is by reading a lot. I do, and I can easily read 800 wpm f

There is a difference between obscuring one's identity (which Tor and anonymous remailers allow you to do), and actively trying to frame an existing third party by using forged headers to make the mail appear that it came from somewhere else

and I really wish someone had put that sentence right in the court's face.

I got about a quarter of the way down, and realized it wasn't worth continuing...

but the ISP or hosting company generally won't tell you the identity of their customer who has leased it from them...So the court's statement that a database search "can eventually lead" to contact information is correct only if you clarify that it "can" lead there, but it usually won't.

Unless, of course, you have a subpoena, in which case the ISP or hosting company will most certainly tell you. And they will likely do

There may be a few willing to try, but I'm sure they're a minority. I just logged in to my 'spam' box to check the domains being used. The vast majority seem to be legitimately registered domains selling 'R0lex R3plicas' or 'V1agra'. A small subset are from 'bankofamerica.com', 'wachovia.com', or 'easternbank.com' presumably from people who feel sufficiently isolated from a US lawsuit. The rest are from gmail or yahoo accounts or domains that I assume don't even exist. I'd be surprised if there were en

In recent months, a client of mine has been joe jobbed so heavily that they've been unable to work due to backscatter. Not only is their business name being used in connection with spam promoting online gambling sites but being self employed and relying on email for their work it's costing them money.

You hit the real problem though...

presumably from people who feel sufficiently isolated from a US lawsuit.

If ever there were a class of criminal deserving of rendition protocols and gitmo style internment...

Actually, there would be no cause of action for slander on these facts -- identity theft, maybe, but not slander. Other requirements aside, slander requires an oral statement, and an email is a "written" statement not an oral one. The correct tort, if it applied, would be libel. However, the other requirements for libel would most likely not be met. The more appropriate tort would be invasion of privacy, either appropriation or maybe even false light, though those may be a stretch.

spam != anonymous mail or free speech. for a start it's not anonymous by it's very nature - they WANT you to contact them and know who they are. it's also not free speech, because free speech means i'm free not to listen or help you in anyway. spam intrudes on my inbox.

or a start it's not anonymous by it's very nature - they WANT you to contact them and know who they are.

You would think so... many of them advertise as referrers (have the damn referrer ID in the link), so they don't want you to contact them, just to click and pass their mostly anonymous referrer ID to the seller.
And then there's the stock pump and dump schemes that don't want you to contact them.

So they think IP addresses are like ID cards and nobody can spoof them... shows the sorry state of affairs and why we get so much spam and nobody is accountable for it and why they can't catch the spammers.

IANALY, because I have another 1.5 semesters and a bar exam to go. However, I still know a lot more about the law than you, which is why I know things like this was a VA Supreme Court case, not a trial.

Appeals don't work like your small claims cases (thank the gods). You have written briefs from the parties and any interested amici curiae, which is where your technical experts come in. The "trial" is oral arguments before the justices (not "judges") of the VASC, where the two parties have fifteen minutes to emphasize certain parts of their cases while the justices interrupt with questions as the mood strikes them. Typically, this is where the justices ask for further explanations of the arguments in the brief, generally about things that seem not to make sense or could use further clarification. Sometimes, justices will ask questions that draw better arguments out of a party, so as to convince other justices around to their way of thinking.

A justice would never ask, "Well, I'm going to rule this way; what do you think," because that's not the appropriate language for the Court; you're confusing a peer-to-peer relationship with one that is decidedly not. The attorneys for the parties aren't peers of the justices, and the amici aren't peers of the justices. Your role as party or amici is to provide the justice with the information the justice wants in order to come to a conclusion. However, justices will ask questions to get at facts they need, and a skilled lawyer will be able to figure out where a justice is headed from a question, and explain why that reasoning is good or bad.

It's all well and good to have a layman's critique of the system, but it would help if the layman wasn't basing his opinions on completely irrelevant experiences and actually knew something about the system he was critiquing. Hell, even a quick Wikipedia search would have prevented basic misunderstandings about the nature of the court: http://en.wikipedia.org/wiki/Supreme_Court_of_Virginia [wikipedia.org]

That is an interesting point and while there is apparently a shortage of law geeks here on Slashdot (I do happen to know someone with both a law degree and a PhD of CS, but that is probably fairly rare) we IT and developer geeks do provide, collectively via the comment and moderation system here on Slashdot, good technical commentary and fact checking which might be useful to your justices as part of an amici curiae brief in order to more fully inform them of the technical background and basis for arguments

But the mistakes in the ruling would have been caught if the judge had just showed a draft to an Internet guru and said, "Hey, can you check if there's anything wrong here?" I know, I know, that's "just not done" (and there are probably formal rules in most states against showing a draft of a ruling to a third party before publishing it, even if the third party reviewer is sworn to secrecy, as they should be). But there's nothing stopping the judge from asking a technical expert during the trial, "It seems

It's not the justice's job to go find out technical details. The lawyers making the case need to hire the experts if necessary and present the relevant facts to them in the briefs. If a brief is wrong or misleading, then the other side needs to point that out, not the justices. They aren't ruling on facts, they're ruling on law. If a brief says that 62,283,583 is prime the justice is not obligated to try and factor it.

IP and MAC address can be spoofed, so that the ISP will not know the true address and location of the originating client endpoint. Also if WiFi is used, then it becomes easier to hide the true endpoint from the ISP and mail server.

Actually, _can_ IP addresses be spoofed for the purpose of sending email? AFAIK, you need to be able to receive and interpret responses from the server to be able to send email. Can you do that with a spoofed IP address?

A court is generally not supposed to know anything that's not brought to its attention in the case, other than legal issues which the court is supposed to know all about. If a court issues an opinion in which it is wrong about how e-mail and IP addresses work, that is simply because one of the following things went wrong:

The court took judicial notice of something that is at odds with reality (this would be extremely rare, as what courts can take judicial notice of is very limited in scope; also, one of the attorneys would normally have had to ask the court to take such judicial notice, although it could do so sua sponte)

One of the lawyers argued the issue and got it wrong, and the other lawyer(s) failed to point out the error

Evidence supporting the wrong finding was presented by an incompetent expert witness

The finder of fact at trial (jury or judge, depending on the specific case) interpreted the evidence wrong

The appellate court decided that the finder of fact at trial interpreted the evidence so horrendously wrong as to justify overturning the factual decision and coming up with the wrong answer in the process

On technical matters, when a court gets it wrong it is usually not the court's fault.

On technical matters, when a court gets it wrong it is usually not the court's fault

As someone who has submitted testimony as a paid expert witness in court cases, I can tell you that often it IS the court's fault. The education of some of the members of the judiciary on technical matters (and not just computer technical matters) is abysmal. There was a judge who ruled that interest on the damages that our client owed should be handled by just doubling the damages. This was completely unfair to our client s

Judges aren't usually supposed to ask the parties questions. They're supposed to decide issues of law and if a question needs to be asked, the lawyers are supposed to be smart enough to ask it. A jury is supposed to decide the facts, but whether it's a jury or a judge who decides the facts it is the job of the lawyers to ensure that evidence is presented to educate the fact-finder sufficiently to make the correct decision. I really don't want to live in a world where judges have to have technical experti

"Spam and other forms of abuse are not speech, just as a brick with an
attached note thrown through a window is not publication."
If that's correct, then the 1st Amend. doesn't apply and the whole argument can be tossed.

> The first 20 pages of the decision, which are all about legal standing, jurisdiction,> and overbreadth, made my eyes glaze over.

So legal stuff makes your eyes glaze over and yet you are going to give us your legal opinion. Right.

> I'm not analyzing those at all except to point out that on most of those issues, the> lower court came to exactly the opposite conclusion from that of the Virginia Supreme> Court, and there is no reason to think that the higher court is any more likely to be> "The first 20 pages of the decision, which are all about legal standing, jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing those at all except to point out that on most of those issues, the lower court came to exactly the opposite conclusion from that of the Virginia Supreme Court, and there is no reason to think that the higher court is any more likely to be "correct" than the lower court (even granting the assumption that there is an objectively "correct" answer to these questions). correct" than the lower court (even granting the assumption that there is an> objectively "correct" answer to these questions).

The Virginia Supreme Court is the ultimate authority on matters of Virginia state law. Where Virginia state law is concerned what the Virginia Supreme Court says is "objectively correct".

If the court had upheld the conviction then the defendant could appeal to Federal court on the grounds that the law violates the First Amendment. However, since the court overturned the conviction the state has no grounds for an appeal to Federal court because there is no Federal question.

I agree that there may be flaws in the court's reasoning, but the nearest thing to an appeal is for the state to ask the Virginia Supreme Court to re-hear the case.

As shown by the record, because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore... registered IP addresses and domain names discoverable through searchable data bases and registration documents "necessarily result[] in a surrender of [the speaker's] anonymity."

Impossible to defend? Just watch me.

You're overlooking a perfectly reasonable generalization that the judge is making. The IPv4 packet headers and the email headers, to the judge, are one and the same: Both can be used (indirectly) to identify the sender of the email, and both need to be "forged" in order to send anonymous email.

Keep in mind that tunnelling your packets through a proxy effectively "forges" the IPv4 source address, since the communication is actually originating at your computer, but on the receiving end, it shows up as being from the proxy, even though the communication actually originated elsewhere.

The judge was right to point out that you can't communicate on the Internet without including some kind of "sender address", and this address needs to be forged in order to use the Internet to communicate anonymously. As far as his argument is concerned, it doesn't matter whether the headers you're forging are specified in RFC 791 or in RFC 822.

The first 20 pages of the decision, which are all about legal standing, jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing those at all except to point out that on most of those issues, the lower court came to exactly the opposite conclusion from that of the Virginia Supreme Court, and there is no reason to think that the higher court is any more likely to be "correct" than the lower court (even granting the assumption that there is an objectively "correct" answer to these questions). Any time you feel intimidated by "experts", it's helpful to step back and ask whether the alleged experts even agree with each other.

Well this quote really gets the article started off with a bang. First of all, the expertise of a trial court and a state supreme court should not be presumed to be equal. A trial court judge could be as fresh as the day is young, but a supreme court justice there has to be elected by the legislature and has to go through a vetting process that favors experience.

This sort of "all experts are equal" attitude confuses issues like global warming, where there are clearly people more knowledgeable about a subj

Courts generally will not favor solutions that revolve around you fraudulently entering into an agreement with email service providers who require you to provide accurate information when signing up and agreeing to their service contracts.

But of course they have no problem with you sending out millions of emails with inaccurate fraudulent information asserting that you are someone who you are not. In fact it is far worse because it is quite likely that the forged headers do in fact represent the identity of some innocent party, whereas supplying "Fred Flintstone at 1010 Bedrock Place" for an identity to the email provider doesn't involve an actual 3rd party in the transaction. In addition email providers can require verification for signup i

The two basic errors are: concluding that anonymous speech on the Internet requires forged headers or other falsified information (and therefore that a ban on forged headers is an unconstitutional ban on anonymous speech)

Cool, so does that mean fake ID is constitutionally protected so that I can preserve my anonymity when doing things in public?

Sometimes (well, quite often actually) judges rule on technology issues without really having nearly enough understanding of the underlying issues and what it means.

The submitter complains about factual issues, but appellate courts do not determine factual issues. Trial courts do. Before the case reached the VA Supreme Court (an appellate court), the trial court already made its findings of fact. The appellate court can only address the factual conclusions of the lower court if the lower court made a clear error in its analysis of the factual evidence presented. As the VA Supreme Court makes clear, it is analyising what is "shown by the record," not making its own

The situation is actually quite simple: The good lawmakers of Virginia passed a law that prevents _anybody_ from using forged headers etc. etc. , including good folks who need anonymity for good reasons protected by the US constitution. Therefore, the law as it stands is illegal. Now a judge _can_ decide that a law is unconstitutional and therefore cannot be used in any court case; a judge can _not_ decide how to fix this law. Therefore it _must_ go bac

The good lawmakers of Virginia passed a law that prevents _anybody_ from using forged headers etc. etc. , including good folks who need anonymity for good reasons protected by the US constitution. Therefore, the law as it stands is illegal.

Exactly how is a content neutral law going to run afoul of the 1st amendment? It's illegal for someone to post bills on my house, regardless of whether they're good people or not.

That law is in fact prohibiting speech. Even if it were rewritten to be more narrowly focused on spammers, it would still be the wrong approach.

The problem with spam is not a speech issue. It is a property issue.

The protection of free speech in the US Constitution does not grant speakers the right to steal property rights. You cannot steal my paper, ink, and printing press and justify the theft as enabling your freedom of speech.

The basic problem with the idea that it is wrong to send something to someone that does not want it is that it turns the idea of an open communication medium on its ear. It is fine that with Yahoo Messenger you cannot send anything to someone until they accept you as a contact. Email was not intended to work that way.

Trying to introduce this sort of permission into email means that it can no longer be used to communicate with people prior to establishing a relationship. Should a law get passed that says

The basic problem with the idea that it is wrong to send something to someone that does not want it is that it turns the idea of an open communication medium on its ear. It is fine that with Yahoo Messenger you cannot send anything to someone until they accept you as a contact. Email was not intended to work that way.

Email was intended for civil participants that would not use it to steal from others. Of course that was naive about the real world, and naive about the protocols being used for real world communications. But if you want to speak of intentions, that was the intent.

Trying to introduce this sort of permission into email means that it can no longer be used to communicate with people prior to establishing a relationship. Should a law get passed that says it is wrong to send things to people they do not want essentially enforces this. You now have the situation where I cannot send you a receipt for your purchase because I have no idea if you want it or not. And as a commercial entity, I cannot take the chance that you don't want it without explicit permission.

Prior communications, transactions, or business relations would imply the intent to communicate within reason about it. The law probably needs to include a clause that says this to be clear about it. This is why a similar clause exists to perm

I think the problem here is that someday you might want to send anonymous mail of a religious or political nature and most would agree that there is merit in that not being illegal. For instance, I've sent anonymous e-mail (well, semi-anonymous, from some generic gmail account) complaining to the Health Dept. that facilities on site were not up to health code, but did not want my employer to be able to deturmine from the public records who made the complaint.

I think the problem here is that someday you might want to send anonymous mail of a religious or political nature and most would agree that there is merit in that not being illegal.

No, we wouldn't. There is no merit to that whatsoever. There are plenty of ways of communicating religious or political messages that do not require forging email headers. First, there are anonymous email accounts that do not forge anything. Second, there are anonymous blogging services. Third, there are anonymous web hosting providers. The techniques that these anti-spam laws use have no valid use except to send out mail with no way to communicate back to the original sender whatsoever, making it nearly useless for legitimate religious or political messaging purposes.

I wish that public key signing of e-mail on a massive system was possible and inexpensive (or free!) and massively adopted so that I could filter out unsigned e-mail.

Yup. I agree. However, if we get to the point where we have to start signing things to prevent spam, legitimate anonymous email will become a lot harder, and thus laws like this one actually protect legitimate anonymous speech by making it harder for people to abuse the email system in a way that causes people to overreact and block all anonymous speech. The negative consequences of spam on free speech are far, far greater than the negative effects of this law, so if this law successfully reduces spam, it has a positive impact on free speech, not a negative one.

I would also add that free speech---even free political speech---is not absolute. The Supreme Court has long held that time, place, and manner restrictions on speech are perfectly allowable. Email is a manner of speech. It is, therefore, completely reasonable to put limits on speech sent via email, so long as the restriction is reasonably narrow in scope, which these regulations are, IMHO. The court striking this down is completely unreasonable, and I would strongly encourage Virginia to ask the SCOTUS to grant certiorari on this one.

All it knows is that you sent some data somewhere. That's the whole point of Tor. No router until the final router can see either the contents of the packet or its destination, and by the time it gets to the final hop, that final router has no idea who the sender was; it only knows which router sent the packet to it, which in turn knows which router sent the packet to it, etc.

Who cares. Unless it knows where the packets are going or what is in them, all that it knows is that you are using Tor for something. Period.

At best, this shows why it is important to get people to use onion routing more than occasionally so that we don't get asshat politicians thinking that discovering somebody using Tor is grounds for suspicion and a physical search and seizure just to find out what law they are presumably breaking....:-)

There's nothing dishonest about anonymity. It's just anonymous. I can see that it puts a burr under your saddle and a bee in your bonnet, but everyone's different (and really, really weird). I'd be interested to know why you consider it lying, assuming of course we're NOT talking about forged email headers here.

Don't be dense, Gordonjcp (if that is your real name).
A quick google would clear that one up.

We're mixing words and sentences up to the extent that nothing has any meaning any more. If someone wants to print anonymously, they can contact a newspaper (blog/whatever), submit an article, and be heard if the media entity will print it. Hence "publius" in the federalist papers.

But sending mail headers with fraudulant address should be "fraud" in the criminal sense and prosecuted in extreme cases.

To be honest, I don't mind a simple heading of "anonymous" - then I can screen you out without a probl

And if my inbox were a public place funded by public money, anonymous people might have a claim to using it. But my inbox is a private place funded by my money and therefore I have the right to stop people from sending to it since it costs me money to download their message.

I have the right to block phone numbers that don't display their Caller ID from calling me. People who hide their phone number are free to call anyone they want...just not me. And that's because I'm the one paying for the line. You do not get to use my line without my permission. Why should my inbox be any different?

Contrast this with my physical mailbox: I don't pay for it (directly, at least). It does not cost me money to have somebody else send me something, in general. And even COD (does anybody actually still do that?) allows me to refuse delivery if I don't want to pay. Since it is, to some degree, a public method, people can send me things without my requesting it and I have the ability to discard their messages unread. It costs me nothing.

But because I have to pay for the network connection, because I have to pay to download your message before I can determine if I want to see it, it means I get to have some control over what gets put in it.

Your right to anonymous speech does not come with a right to an audience. You do not get to enter my home, without my permission, to try to make your case. If I want to hear your speech, I will go to where you make it.

No you don't. You don't have the right to free speech within my house, and I can tell you to leave my home and use force to compel you to if something you say offends me. Hell, I can make you leave my home if you refuse to say something I want you to say.

You do not have the right to free speech on my servers. If I'm running a forum and I don't like what you say, I'm well within my rights to delete your posts and ban you forever. Because I own these things, I have control over them, in many ways more control than the government will ever have. The government can only restrict certain types of speech, I can restrict any or all speech.

What are you talking about? How would you say "Nee" if you're banned from my forum? How would you bother me by saying "Nee" if you can't come into my property? I have no idea what you're talking about, and I suspect that you don't either.

When you tell people they can't spam, you're telling them that they don't have the right to speak their mind to the world.

No, you're telling them that they don't have the right to make everyone listen to what they want to say... which they don't, as far as I'm concerned.

What they choose to say on their own web site, which I visit voluntarily, or in a public forum, which no-one is forced to attend, is one thing. What they shove, unsolicited, into millions of inboxes is quite another. The problem with spam is not what they say, but the push model they use to say it.

You're the one running a server and listening to any traffic that comes in.

I'm not, though, am I? And neither are almost all of the other average people sitting at home, whose Internet connections are mainly used for surfing the web and keeping in touch by e-mail. But we still get to pay — in many cases, on a meter basis — for the downloaded material.

Your protocol is broken and you're asking for *legislators* to fix it?

My protocol isn't broken, it's just being abused. If someone was driving around town in the middle of the night, shouting obscenities through car-mounted megaphones, then they would be regarded as antisocial, and the polic

That isn't an analogy, it's hyperbole. Unlike sleep, you don't have a biological need for email.

No, but I imagine in today's society the majority would consider it an important communications channel, like the postal service or telephone. It has important practical uses, and improves quality of life generally.

My mailbox is full of it right now. It has all the same characteristics of spam. It's annoying, it's wasteful, only a fraction of a percent of recipients generate a sale, and disposal of it costs me money. Guess what? I haven't heard of a single case where OfficeMax or Bed, Bath, & Beyond, etc have been taken to court for spamming my mailbox.

Then your country's laws suck. Physical mail, as you say, has much the same characteristics of spam. My country has chosen not to accept the annoyance to the general population, and one quick trip to a web site put my address on a compulsory no-junk-mail list. Telephoning me for marketing purpose

Maybe I'm projecting my thoughts too much on the rest of the populance, but I know very few people my age (~30 years old) who have even started building a family, and that's quite frankly, distressing. The economy isn't everything. We will survive. The crash will happen. Let it happen swiftly and let the recovery happen in the near term.

I don't know what this has to do with the subject at hand, but I agree with you to some extent. I don't agree that it has to do with people addicted to their jobs, although

I don't know what this has to do with the subject at hand, but I agree with you to some extent. I don't agree that it has to do with people addicted to their jobs, although there are certainly people who are. There are also people addicted to the Internet, or addicted to TV viewing or going to those bars you mentioned.

The important difference in those is that the former addiction would appear to be actively endorsed by society in general, or could even be considered indirectly enforced.